Bill Text: FL S1364 | 2022 | Regular Session | Introduced
Bill Title: Levying of Fines by Homeowners' Associations
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2022-03-14 - Died in Regulated Industries [S1364 Detail]
Download: Florida-2022-S1364-Introduced.html
Florida Senate - 2022 SB 1364
By Senator Torres
15-01727-22 20221364__
1 A bill to be entitled
2 An act relating to levying of fines by homeowners’
3 associations; amending s. 720.305, F.S.; removing the
4 authority of a homeowners’ association to levy fines;
5 conforming provisions to changes made by the act;
6 amending ss. 720.306 and 720.311, F.S.; conforming
7 provisions to changes made by the act; providing an
8 effective date.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. Section 720.305, Florida Statutes, is amended to
13 read:
14 720.305 Obligations of members; remedies at law or in
15 equity; levy of fines and suspension of use rights.—
16 (1) Each member and the member’s tenants, guests, and
17 invitees, and each association, are governed by, and must comply
18 with, this chapter, the governing documents of the community,
19 and the rules of the association. Actions at law or in equity,
20 or both, to redress alleged failure or refusal to comply with
21 these provisions may be brought by the association or by any
22 member against:
23 (a) The association;
24 (b) A member;
25 (c) Any director or officer of an association who willfully
26 and knowingly fails to comply with these provisions; and
27 (d) Any tenants, guests, or invitees occupying a parcel or
28 using the common areas.
29
30 The prevailing party in any such litigation is entitled to
31 recover reasonable attorney fees and costs. A member prevailing
32 in an action between the association and the member under this
33 section, in addition to recovering his or her reasonable
34 attorney fees, may recover additional amounts as determined by
35 the court to be necessary to reimburse the member for his or her
36 share of assessments levied by the association to fund its
37 expenses of the litigation. This relief does not exclude other
38 remedies provided by law. This section does not deprive any
39 person of any other available right or remedy.
40 (2) An association may levy reasonable fines. A fine may
41 not exceed $100 per violation against any member or any member’s
42 tenant, guest, or invitee for the failure of the owner of the
43 parcel or its occupant, licensee, or invitee to comply with any
44 provision of the declaration, the association bylaws, or
45 reasonable rules of the association unless otherwise provided in
46 the governing documents. A fine may be levied by the board for
47 each day of a continuing violation, with a single notice and
48 opportunity for hearing, except that the fine may not exceed
49 $1,000 in the aggregate unless otherwise provided in the
50 governing documents. A fine of less than $1,000 may not become a
51 lien against a parcel. In any action to recover a fine, the
52 prevailing party is entitled to reasonable attorney fees and
53 costs from the nonprevailing party as determined by the court.
54 (a) An association may suspend, for a reasonable period of
55 time, the right of a member, or a member’s tenant, guest, or
56 invitee, to use common areas and facilities for the failure of
57 the owner of the parcel or its occupant, licensee, or invitee to
58 comply with any provision of the declaration, the association
59 bylaws, or reasonable rules of the association. This paragraph
60 does not apply to that portion of common areas used to provide
61 access or utility services to the parcel. A suspension may not
62 prohibit an owner or tenant of a parcel from having vehicular
63 and pedestrian ingress to and egress from the parcel, including,
64 but not limited to, the right to park.
65 (b) A fine or suspension levied by the board of
66 administration may not be imposed unless the board first
67 provides at least 14 days’ notice to the parcel owner and, if
68 applicable, any occupant, licensee, or invitee of the parcel
69 owner, sought to be fined or suspended and an opportunity for a
70 hearing before a committee of at least three members appointed
71 by the board who are not officers, directors, or employees of
72 the association, or the spouse, parent, child, brother, or
73 sister of an officer, director, or employee. If the committee,
74 by majority vote, does not approve a proposed fine or
75 suspension, the proposed fine or suspension may not be imposed.
76 The role of the committee is limited to determining whether to
77 confirm or reject the fine or suspension levied by the board. If
78 the proposed fine or suspension levied by the board is approved
79 by the committee, the fine payment is due 5 days after notice of
80 the approved fine is provided to the parcel owner and, if
81 applicable, to any occupant, licensee, or invitee of the parcel
82 owner. The association must provide written notice of such fine
83 or suspension by mail or hand delivery to the parcel owner and,
84 if applicable, to any occupant, licensee, or invitee of the
85 parcel owner.
86 (3) If a member is more than 90 days delinquent in paying
87 any fee, fine, or other monetary obligation due to the
88 association, the association may suspend the rights of the
89 member, or the member’s tenant, guest, or invitee, to use common
90 areas and facilities until the fee, fine, or other monetary
91 obligation is paid in full. This subsection does not apply to
92 that portion of common areas used to provide access or utility
93 services to the parcel. A suspension may not prohibit an owner
94 or tenant of a parcel from having vehicular and pedestrian
95 ingress to and egress from the parcel, including, but not
96 limited to, the right to park. The notice and hearing
97 requirements under subsection (2) do not apply to a suspension
98 imposed under this subsection.
99 (4) An association may suspend the voting rights of a
100 parcel or member for the nonpayment of any fee, fine, or other
101 monetary obligation due to the association that is more than 90
102 days delinquent. A voting interest or consent right allocated to
103 a parcel or member which has been suspended by the association
104 shall be subtracted from the total number of voting interests in
105 the association, which shall be reduced by the number of
106 suspended voting interests when calculating the total percentage
107 or number of all voting interests available to take or approve
108 any action, and the suspended voting interests shall not be
109 considered for any purpose, including, but not limited to, the
110 percentage or number of voting interests necessary to constitute
111 a quorum, the percentage or number of voting interests required
112 to conduct an election, or the percentage or number of voting
113 interests required to approve an action under this chapter or
114 pursuant to the governing documents. The notice and hearing
115 requirements under subsection (2) do not apply to a suspension
116 imposed under this subsection. The suspension ends upon full
117 payment of all obligations currently due or overdue to the
118 association.
119 (5) All suspensions imposed pursuant to subsection (3) or
120 subsection (4) must be approved at a properly noticed board
121 meeting. Upon approval, the association must notify the parcel
122 owner and, if applicable, the parcel’s occupant, licensee, or
123 invitee by mail or hand delivery.
124 (6) The suspensions permitted by paragraph (2)(a) and
125 subsections (3) and (4) apply to a member and, when appropriate,
126 the member’s tenants, guests, or invitees, even if the
127 delinquency or failure that resulted in the suspension arose
128 from less than all of the multiple parcels owned by a member.
129 Section 2. Paragraph (b) of subsection (9) of section
130 720.306, Florida Statutes, is amended to read:
131 720.306 Meetings of members; voting and election
132 procedures; amendments.—
133 (9) ELECTIONS AND BOARD VACANCIES.—
134 (b) A person who is delinquent in the payment of any fee,
135 fine, or other monetary obligation to the association on the day
136 that he or she could last nominate himself or herself or be
137 nominated for the board may not seek election to the board, and
138 his or her name shall not be listed on the ballot. A person
139 serving as a board member who becomes more than 90 days
140 delinquent in the payment of any fee, fine, or other monetary
141 obligation to the association shall be deemed to have abandoned
142 his or her seat on the board, creating a vacancy on the board to
143 be filled according to law. For purposes of this paragraph, the
144 term “any fee, fine, or other monetary obligation” means any
145 delinquency to the association with respect to any parcel. A
146 person who has been convicted of any felony in this state or in
147 a United States District or Territorial Court, or has been
148 convicted of any offense in another jurisdiction which would be
149 considered a felony if committed in this state, may not seek
150 election to the board and is not eligible for board membership
151 unless such felon’s civil rights have been restored for at least
152 5 years as of the date on which such person seeks election to
153 the board. The validity of any action by the board is not
154 affected if it is later determined that a person was ineligible
155 to seek election to the board or that a member of the board is
156 ineligible for board membership.
157 Section 3. Paragraph (a) of subsection (2) of section
158 720.311, Florida Statutes, is amended to read:
159 720.311 Dispute resolution.—
160 (2)(a) Disputes between an association and a parcel owner
161 regarding use of or changes to the parcel or the common areas
162 and other covenant enforcement disputes, disputes regarding
163 amendments to the association documents, disputes regarding
164 meetings of the board and committees appointed by the board,
165 membership meetings not including election meetings, and access
166 to the official records of the association shall be the subject
167 of a demand for presuit mediation served by an aggrieved party
168 before the dispute is filed in court. Presuit mediation
169 proceedings must be conducted in accordance with the applicable
170 Florida Rules of Civil Procedure, and these proceedings are
171 privileged and confidential to the same extent as court-ordered
172 mediation. Disputes subject to presuit mediation under this
173 section shall not include the collection of any assessment,
174 fine, or other financial obligation, including attorney
175 attorney’s fees and costs, claimed to be due or any action to
176 enforce a prior mediation settlement agreement between the
177 parties. Also, in any dispute subject to presuit mediation under
178 this section where emergency relief is required, a motion for
179 temporary injunctive relief may be filed with the court without
180 first complying with the presuit mediation requirements of this
181 section. After any issues regarding emergency or temporary
182 relief are resolved, the court may either refer the parties to a
183 mediation program administered by the courts or require
184 mediation under this section. An arbitrator or judge may not
185 consider any information or evidence arising from the presuit
186 mediation proceeding except in a proceeding to impose sanctions
187 for failure to attend a presuit mediation session or to enforce
188 a mediated settlement agreement. Persons who are not parties to
189 the dispute may not attend the presuit mediation conference
190 without the consent of all parties, except for counsel for the
191 parties and a corporate representative designated by the
192 association. When mediation is attended by a quorum of the
193 board, such mediation is not a board meeting for purposes of
194 notice and participation set forth in s. 720.303. An aggrieved
195 party shall serve on the responding party a written demand to
196 participate in presuit mediation in substantially the following
197 form:
198
199 STATUTORY OFFER TO PARTICIPATE
200 IN PRESUIT MEDIATION
201
202 The alleged aggrieved party, ................, hereby
203 demands that ................, as the responding
204 party, engage in mandatory presuit mediation in
205 connection with the following disputes, which by
206 statute are of a type that are subject to presuit
207 mediation:
208
209 (List specific nature of the dispute or disputes to be
210 mediated and the authority supporting a finding of a
211 violation as to each dispute.)
212
213 Pursuant to section 720.311, Florida Statutes, this
214 demand to resolve the dispute through presuit
215 mediation is required before a lawsuit can be filed
216 concerning the dispute. Pursuant to the statute, the
217 parties are required to engage in presuit mediation
218 with a neutral third-party mediator in order to
219 attempt to resolve this dispute without court action,
220 and the aggrieved party demands that you likewise
221 agree to this process. If you fail to participate in
222 the mediation process, suit may be brought against you
223 without further warning.
224
225 The process of mediation involves a supervised
226 negotiation process in which a trained, neutral third
227 party mediator meets with both parties and assists
228 them in exploring possible opportunities for resolving
229 part or all of the dispute. By agreeing to participate
230 in presuit mediation, you are not bound in any way to
231 change your position. Furthermore, the mediator has no
232 authority to make any decisions in this matter or to
233 determine who is right or wrong and merely acts as a
234 facilitator to ensure that each party understands the
235 position of the other party and that all options for
236 reasonable settlement are fully explored.
237
238 If an agreement is reached, it shall be reduced to
239 writing and becomes a binding and enforceable
240 commitment of the parties. A resolution of one or more
241 disputes in this fashion avoids the need to litigate
242 these issues in court. The failure to reach an
243 agreement, or the failure of a party to participate in
244 the process, results in the mediator declaring an
245 impasse in the mediation, after which the aggrieved
246 party may proceed to court on all outstanding,
247 unsettled disputes. If you have failed or refused to
248 participate in the entire mediation process, you will
249 not be entitled to recover attorney’s fees, even if
250 you prevail.
251
252 The aggrieved party has selected and hereby lists five
253 certified mediators who we believe to be neutral and
254 qualified to mediate the dispute. You have the right
255 to select any one of these mediators. The fact that
256 one party may be familiar with one or more of the
257 listed mediators does not mean that the mediator
258 cannot act as a neutral and impartial facilitator. Any
259 mediator who cannot act in this capacity is required
260 ethically to decline to accept engagement. The
261 mediators that we suggest, and their current hourly
262 rates, are as follows:
263
264 (List the names, addresses, telephone numbers, and
265 hourly rates of the mediators. Other pertinent
266 information about the background of the mediators may
267 be included as an attachment.)
268
269 You may contact the offices of these mediators to
270 confirm that the listed mediators will be neutral and
271 will not show any favoritism toward either party. The
272 Florida Supreme Court can provide you a list of
273 certified mediators.
274
275 Unless otherwise agreed by the parties, section
276 720.311(2)(b), Florida Statutes, requires that the
277 parties share the costs of presuit mediation equally,
278 including the fee charged by the mediator. An average
279 mediation may require three to four hours of the
280 mediator’s time, including some preparation time, and
281 the parties would need to share equally the mediator’s
282 fees as well as their own attorney’s fees if they
283 choose to employ an attorney in connection with the
284 mediation. However, use of an attorney is not required
285 and is at the option of each party. The mediators may
286 require the advance payment of some or all of the
287 anticipated fees. The aggrieved party hereby agrees to
288 pay or prepay one-half of the mediator’s estimated
289 fees and to forward this amount or such other
290 reasonable advance deposits as the mediator requires
291 for this purpose. Any funds deposited will be returned
292 to you if these are in excess of your share of the
293 fees incurred.
294
295 To begin your participation in presuit mediation to
296 try to resolve the dispute and avoid further legal
297 action, please sign below and clearly indicate which
298 mediator is acceptable to you. We will then ask the
299 mediator to schedule a mutually convenient time and
300 place for the mediation conference to be held. The
301 mediation conference must be held within ninety (90)
302 days of this date, unless extended by mutual written
303 agreement. In the event that you fail to respond
304 within 20 days from the date of this letter, or if you
305 fail to agree to at least one of the mediators that we
306 have suggested or to pay or prepay to the mediator
307 one-half of the costs involved, the aggrieved party
308 will be authorized to proceed with the filing of a
309 lawsuit against you without further notice and may
310 seek an award of attorney’s fees or costs incurred in
311 attempting to obtain mediation.
312
313 Therefore, please give this matter your immediate
314 attention. By law, your response must be mailed by
315 certified mail, return receipt requested, and by
316 first-class mail to the address shown on this demand.
317
318 ........................
319 ........................
320
321 RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR
322 AGREEMENT TO THAT CHOICE.
323
324 AGREEMENT TO MEDIATE
325
326 The undersigned hereby agrees to participate in
327 presuit mediation and agrees to attend a mediation
328 conducted by the following mediator or mediators who
329 are listed above as someone who would be acceptable to
330 mediate this dispute:
331
332 (List acceptable mediator or mediators.)
333
334 I/we further agree to pay or prepay one-half of the
335 mediator’s fees and to forward such advance deposits
336 as the mediator may require for this purpose.
337
338 ........................
339 Signature of responding party #1
340
341 ........................
342 Telephone contact information
343
344 ........................
345 Signature and telephone contact information of responding
346 party #2 (if applicable)(if property is owned by more than one
347 person, all owners must sign)
348 Section 4. This act shall take effect July 1, 2022.
